A Durban
High court decision made history today, 9 July 2003. Heavily polluted
communities of south Durban can take solace in the fact that the Mondi-Biotrace
Combuster proposal will not be allowed to be given the go ahead by the
provincial environmental department.

The reserved judgment of Judge
Hugo in High Court Review proceedings brought by the South Durban Community
Environmental Alliance (SDCEA) was delivered in the Durban High Court
today. Judge Hugo ruled in favor of SDCEA, and declared a purported exemption
granted by Sarah Allen of the Department of Agriculture and Environmental
Affairs (DAEA) a nullity.

The court application was brought
by SDCEA to set aside a purported oral 'exemption' granted to Biotrace
by the DAEA's Sarah Allen on 29 August 2001. Biotrace was orally 'exempted'
from following certain EIA regulations, as a consequence of which an incomplete
environmental impact assessment (EIA) was conducted in respect of a proposed
R320 million Combuster planned to be built at Mondi Paper Mill in South
Durban Basin (SDB).

The SDB is a highly polluted
area where 200 000 largely vulnerable and disadvantaged residents live
side by side with heavy industries. Mondi Paper is the 3rd largest air
polluter in South Durban, and emits about 9 tons of Sulphur Dioxide (SO2)
into the atmosphere per day (only the two oil refineries in the area emit
more air pollutants than Mondi). In addition to wanting to burn its residual
waste material on site to generate steam, Mondi also plans to continue
operating two dirty coal-fired boilers at its plant which emit about 3
tons of SO2 a day each.

Sarah Allen authorized the
construction of the Combuster in September 2002.

SDCEA appealed against the
authorization to the MEC of Agriculture and Environmental Affairs in October
2002, and decided to take the matter on review to the High Court after
Sarah Allen confirmed the oral 'exemption' in writing in February 2003.

The matter was argued on behalf
of SDCEA on 24 June 2003 by Advocate Angus Stewart. Advocates Parmanand
and Winfred appeared for the Head of Department of the DAEA.

In his judgment, the Honorable Judge Hugo stated:

'I have come to the
conclusion that the application was properly and timeously brought and
that the exemption purportedly granted in terms of s28A was a nullity,
it having not been given in writing nor was it based on a written application
wherein reasons were given for the exemption'.

"This sets an important
precedent that shows that neither the DAEA nor Sarah Allen are above the
law. We trust that the DAEA will in the future take the concerns that
SDCEA has about the unacceptably high levels of pollution emitted from
the Mondi Paper Mill, and the effect this has on the health of the community,
seriously. We also trust that the DAEA will no longer marginalize community
groups in environmental decision-making processes by issuing exemptions
from procedural requirements behind their backs. The judgment shows that
we were correct in placing our faith in the court and taking up this battle
on behalf of the community. We believe that the judgment will go a long
way to ensuring that the rights of communities to fair and transparent
environmental decision-making are respected in the future'.

In terms of the order, the
Member of the Executive Council: DAEA has been directed in deciding the
EIA Appeal to regard Biotrace as enjoying no EIA exemption. Judge Hugo
also noted in his judgment that:

"It is not in dispute
that were it not for such exemption being granted the process followed
in granting the respondents leave to erect the fluidized bed Combuster
was flawed in as much as the necessary steps in terms of the regulations
were not taken'.

"We believe that this
judgment will have a decisive bearing on the outcome of SDCEA's EIA Appeal.
The judgment shows that Biotrace was not justified in ignoring important
provisions of the EIA regulations, and that the DAEA was not justified
allowing them to ignore the EIA regulations. The EIA process was fatally
flawed, and must be recommenced de novo".

The Head of Department of the
DAEA was ordered to pay the costs of the application, with Biotrace being
ordered to pay the costs of unsuccessfully opposing interim relief jointly
and severally. The MEC:DAEA and Mondi did not oppose the application.